19 May 2025
According to a significant ruling by the Supreme Court, temporary workers whom are employed through an agency are entitled to the same compensation as employees who are directly employed by the actual employer. This right is based on European law and applies to all essential working conditions.
Under Article 16 of the ABU collective labor agreement (cla), temporary workers are entitled to various allowances that apply to the employer for whom they are actually working (the user company). This ‘user company remuneration’ includes several wage components that must be at least equal to the pay of an employee in a comparable position at the user company. However, this list in the ABU-cla is not exhaustive. For instance, it does not include the individual or personal choice budget that some employers offer to their own employees. This can lead to temporary workers being financially worse off than their colleagues who are directly employed by the user company.
On September 27, 2024, the Dutch Supreme Court made an important ruling on this matter (see ECLI:NL:HR:2024:1303).
In this case, the employee worked through Dosign Staffing B.V. at AkzoNobel and received fewer allowances compared to his colleagues. This included a results-dependent bonus (RAB), a PDD performance allowance, and the so-called Akzo bonus.
The Supreme Court ruled that the temporary worker was also entitled to these allowances, based on Article 8(1) of the Dutch Waadi Act and Article 5(1) of the European Temporary Agency Work Directive. It is established that temporary workers have the right to equal pay concerning “essential working conditions”. The earlier Randstad/Empleo ruling by the European Court of Justice (see ECLI:EU:C:2024:156) indicates that this concept must be interpreted broadly.
The implications for practice are substantial. So far, the ABU-cla has not been declared generally binding by the Dutch Ministry of Social Affairs and Employment. Sources in The Hague suggest that this is related to the Supreme Court’s ruling, which has established that the ABU-cla no longer complies with European legislation.
Moreover, the latest ABU-cla was agreed without the involvement of the major trade unions (FNV, CNV, and De Unie). It was only with the agreement of a smaller union (LBV) that the cla could be concluded. However, FNV argues that LBV is not an independent union and therefore lacks the authority to conclude collective agreements. Although the Rotterdam court ruled on April 17, 2025 (seee ECLI:NL:RBROT:2025:4472) that LBV does not act unlawfully against FNV, it is expected that FNV will not back down – an appeal is still possible.
Are you a temporary work employer or employee in need of advice on this issue? Please contact one of the labor law lawyers at GMW advocaten; they are happy to assist you.
